20 | The Summation
Which Lawyer Are You? by The Honorable Ross Goodman First, a disclaimer: I speak only for myself. I have no authority to speak for any other judges! Second, what exactly does the question refer to? I spend hours on end reading motions, memos and proposed orders. There are some lawyers whose work product is consistently well-written, brief, to the point and supported by law and fact. There are other lawyers whose work product is consistently difficult, long-winded and which omits necessary authority and/or necessary facts. Don’t expect me to name names. However, I know which attorneys fall into which category. I can tell by the lawyer whether I can rely on what is said, or whether I need to go through the documents with the proverbial “fine toothed comb.” What I can tell you is the former attorney’s work product can be consistently relied upon. And, when I am trying to be thorough, and to get it right, I am also trying to efficiently move the docket. When the attorney falls into the first category, I am confident in their work. I am not suggesting anyone gets a free ride or some special advantage. I am simply saying that I appreciate the attorneys in the first category. So, I return to the original question: which lawyer are you?
And, why does it matter? How you present your argument affects how it is perceived. Sloppy writing infers sloppy thinking. Errors in citations, errors in basic facts, arguments that seem to go on and on and on indicate a lack of confidence in the argument being made. It also hides the real argument you are making. Here are some tips on how to improve your written work. Don’t misquote or take a quote out of context. I read the cases. I read the file. I don’t claim I know everything about the file, but I know enough to spot a misstatement. And taking a quote out of context is, in my humble opinion, the same as an intentional misrepresentation. It is hard to give credence to an argument after discovering a falsehood. Make your point clearly and succinctly. Then stop. If you have another issue to argue, argue it. Don’t give fifteen different arguments on the same point. It indicates you don’t even know what you are arguing. You’re just throwing up arguments in hopes that one will catch. But what you have done is masked your best argument. It is confusing, at best, and shows a lack of confidence, at worst. One paragraph, one idea! Here’s my point. Here are the facts that support it. Here are the authorities
that support it. Then, go on to the next argument in the NEXT paragraph. Do not ask for relief to which you are not entitled. If you try to “slip one in,” you might get away with it once or twice. It becomes a bad habit of yours, and you will get caught. And, when you are found out, you lose all credibility. Speaking of credibility, remember this: once you lose your credibility, it is extremely hard to earn it back. Lose your credibility in one case, and it affects all your future cases. The opposite is also important. Concede points that you cannot win. This shows not only a command of the law and the facts but also demonstrates your credibility. It also shows confidence in your other arguments. Judge Collier once commented to me during a trial that I had made the “silliest argument” he had ever heard. Personally, I thought it was brilliant. In retrospect, perhaps His Honor was correct. The point is this. After you write your brief, put it away. A couple of hours or a day later, re-read your brief. I guarantee you will see things differently! That argument you thought was brilliant may not be as persuasive a day later. Those fifteen arguments you made…perhaps you could cut out a few (like 14 of the 15!).
Ask a colleague to read your Brief. They will see things you missed, or errors in your argument, or, better yet, they will see an argument you could make instead which is stronger. It is called a “Brief ” for a reason. Remember the “KISS” principal: Keep It Short and Simple! Give yourself time. Waiting for the last minute to write a brief is a guarantee of error. You miss things. You don’t take the time to read the cases or statutes or rules. You leave out important facts. You forget to include an important argument. An error that may be simple neglect could be mis-perceived as an attempt to misrepresent! If you got this far, you are probably thinking that you learned all of this in your legal research and writing class. You would be amazed at how many lawyers do not practice these basics. Moreover, lessons you learned in law school take on new meaning after a few years of practice. Nothing I have said above is anything new. What IS new is your understanding of the importance of applying these rules, giving yourself time, keeping your credibility, being persuasive, being succinct, and being perceived as one of those lawyers a judge can consistently rely upon. If you follow these rules, it does not guarantee you will prevail. It does make it much more likely.
